An Attempted FOIL

NY governor’s office denies CJR’s records request

Late this afternoon I got an email from the New York governor’s office initially denying a pair of requests I filed in March under the state’s Freedom of Information Law.

The subject of said requests? All emails between the governor’s two top press aides and journalists sent between January 15, 2010, and the dates in March when the flacks resigned their positions. As you may recall, in that period of time the governor and a top aide were under the aggressive investigative lens of The New York Times. The paper was examining the aide’s record of domestic abuse, and accusations that the governor and members of the state police discouraged the aide’s girlfriend from filing domestic abuse charges after an apparently violent incident that the governor office originally described as a “bad breakup.”

You may also recall that in the run up to the Times’s blockbusters on the scandal, almost all of New York’s press corps got swept up in rather uninformed and all too public speculation about a story that the Times hadn’t run yet.

Where there are rumors, there are press secretaries called upon to deny them, and for that reason among others, I thought it would be interesting to get a peek at what the flacks were getting and giving in those hectic days.

Credit for this idea goes to John Cook, a reporter now with Yahoo! News. While working for Gawker, he had filed a similar request with the Paterson administration for emails sent and received by Governor Eliot Spitzer’s press secretary during his dissection by the Times. (Cook, in turn, credits South Carolina’s The State, which filed the same kind of request when Governor Mark Sanford was not hiking on the Appalachian Trail.)

Today the governor’s office denied my request. (They also, it turns out, just denied a similar, though apparently narrower, request made by John Cook.) Here’s a PDF laying out the legal reasoning behind one of the denials. (The two letters are essentially identical.) The governor’s lawyer offers two arguments, both of which, let’s note, Paterson’s lawyers didn’t find fit to cite when it was Spitzer’s press secretaries’ emails on the line.

The first is that the governor’s office claims that New York’s state’s shield law forbids emails to be released because they are “the work product of journalists.” If you look at the denial letter, you’ll note that Jeffrey Pearlman, the lawyer who signed the denial, doesn’t cite any text from the state’s shield law in making this argument. I think I have an idea why: there’s not a word in the law to support this claim. The law protects journalists from being held in contempt if they themselves refuse to reveal their sources, unpublished information, and other work product as the result of a court or legislative subpoena. It doesn’t protect other people who may possess information about a journalist’s work. I can’t imagine the governor’s office being able to offer a plausible defense of this argument.

The second argument is perhaps more colorable—though that’s not saying much. Pearlman suggests that the information, sources, and methods of reporting described in the emails would if disclosed “cause substantial injury to the competitive position” of the news organization employing any given reporter. But “substantial injury” is a high bar, and it’s hard to see how months-old emails between the governor’s official press staff (no Deep Throat there) and the working press would have much content that could clear it.

It will be interesting to see how well these arguments hold up should I—or Cook, or any other reporter out there who may have asked for the emails—decide to seek an administrative appeal, or involve New York state’s ombudsman-like Committee on Open Government, or the courts.

I have a guess.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.

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